Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6532
 SECOND DIVISION Docket No. 6358
 2-SPT(PL)-CM-' 73
 The Second Division consisted of the regular members and in
 addition Referee Irving R. Shapiro when award was rendered.
 ( System Federation No. 114, Railway Employes'
 ( Department, A. F. of L. - C. I. 0.
 Parties to Dispute: ( (Carmen)
 (
 ( Southern Pacific Transportation Company (Pacific Lines)
Dispute: Claim of Employes: i








          (b) Grant Claimant all vacation rights. I


              (c) Assume and pay all premiums for hospital, surgical and medical benefits including all costs for life insurance.


              (d) Carrier to pay into the Railroad Retirement Fund the maximum amount that is required to be paid for an active employee for all time he is held out of service.


Findino: .

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The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

        Parties to said dispute waived right of appearance at hearing thereon.

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Form 1 Award No. 657.2
 Page 2 Docket No. 635$
 2-SPT(PL)-CM-' 73
 On September 1, 1971 an incident occurred at the Service Track, Los i
 Angeles Locomotive Facilities of the Carrier. Claimant employed as a Locomotive
 Carpenter at that location allegedly suffered an in service injury as a result
 thereof. Claimant received an accident report form from supervision. The form
 was completed but not turned in by Claimant to Management until September 3, 1971.
 By Carrier's letter dated September 16, 1971, Claimant was cited for hearing for
 violation of Rule 801 of Carrier's General Rules and Regulations in that Claimant
 allegedly gave false information in said accident report.

 The hearing was conducted on September 22, 1971 and Claimant was present and was represented by three duly designated officers of his Organization.

 Early in the hearing, the Local Chairman of the Petitioner interposed the following:

        "...we do have this statement to make at this time, based on the Railway Labor Board decision of 1941, First Division, July 11, 1941, settled in 1947, where referee ruled that injured

        employes with litigation pending against the company by an'

        employe, that no hearing would be held until pending litigation

        is settled, therefore, this Committee respectfily requests

        that the hearing be postponed until the litigation between

        Mr. Terrell and the Southern Pacific Transportation Company

        has been adjudicated."


        The hearing officer denied the request and proceeded to question witnesses

and subject them to questioning by Claimant's representatives, who with Claimant i
 remained at the hearing and did in fact examine witnesses. When Claimant
 wag called upon to testify in his own behalf, he refused to answer material
 questions and presented a statement to the hearing officer which reads:

        "On advice of ayy lawyer I cannot testifY at.this bearing because it may prejudice my pending law suit against Southern Pacific Company -


        Based on Labor Board Award 11501 - 1st Division - 1941 and other Awards relative thereto."


There is nothing in this record to indicate that Claimant had in fact consulted an attorney, the name of same, or that in fact a law suit was ever
 commenced by Claimant on or before September 22, 1971 or at anytime thereafter. j
 Contrast this with the facts in First Division Award No. 11501, relied upon so
 heavily by Claimant and Petitioner. On page 4 of said Award we find: '!

        "POSITION OF CARRIER: Mr. Elving sustained an injury resulting in the amputation of his left arm; suit was instituted against the Northern Pacific Railway Company in April, 1941, by Mr. Elving to recover damages because of this injury; ih!;this i


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Form 1 Award No. 6512
 Page 3 Docket No. 6358
 2-SPT(PL)-CM-' 73
 "complaint Mr. Elving alleged that as a result of personal
 injuries his earning capacity was wholly lost and destroyed; at
 the trial of Mr. Elving's suit in June, 1941, evidence was
 ,presented to the court and jury by Mr. Elving and witnesses
 appearing 1* his behalf that his earning capacity was wholly
 lost and destroyed; the jury returned a verdict of $13,000 in
 favor of Mr. Elving, which has been paid. After Mr. Elving
 failed to annear at the investigation on July 11, 1941, after
 proper notice to him thereof had been served upon hims he was
 advised that his services with the Railway Company were terminated
 and his employment record w.s closed out on the basis that he had
 been relieved from service because his earning capacity had been
 wholly lost and destroyed." (Emphasis supplied.)
 It is clearly evident that there is no comparability between the fact
 pattern herein and that developed in Award 11501, and therefore its concepts
 cannot be found to be applicable hereto.
 i
 It must therefore be held that Claimant was afforded a hearing at which
 he was present and was duly represented. His refusal to defend himself was not
 grounded on valid and subsisting factors, as far as the record before us
 reveals. Vie hearing is found to have been in compliance with Rule 39 of the
 Controlling Agreement.

 Based upon the record, it must be held that substantial evidence to sustain the charge was developed at the hearing. In Awards too numerous to cite we have refused to reverse or otherwise tamper with the discipline assessed
 by the Carrier under such circumstances.'

                        A W A R D


        Claim denied.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                                By Order of Second Division,


Attest: 617 Executive Secretary

 Dated at Chicago, Illinois, this 31st day of Mays, 1973.

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